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In December 2021, I wrote an article published in De Rebus, titled ‘When “no” means “no” – the controversy from misunderstanding the concept of sexual consent’ (2021 (Dec) DR 16). I wrote the article due to the findings that were made in Coko v S [2021] 4 All SA 768 (ECG). The Supreme Court of Appeal in Director of Public Prosecutions Eastern Cape, Makhanda v Coko (Women’s Legal Centre Trust and Others as Amici Curiae) [2024] 3 All SA 674 (SCA) to some extent agreed with the reasoning of the article referred to above. The Supreme Court of Appeal at para 77 briefly discussed R v Ewanchunk 1999 SCC 711, where the court said: ‘Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has fully changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at minimum, reckless conduct, which is not excusable.’ In Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others 2025 (1) SACR 36 (GP) the court made an order that:

‘1. Sections 3, 4, 5, 6, 7, 8, 9 read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 are declared unconstitutional, invalid and inconsistent with the Constitution to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question, alternatively, to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective believe in consent.

2. The declaration of invalidity in paragraph 1 is suspended for a period of 18 months to allow the constitutional defects to be remedied by Parliament.
3. During the 18 months period referred to in paragraph 2, the following words shall be read into the Act:

“56(1A) Whenever an accused person is charged with an offence under section 3, 4, 5, 6, 7, 8, 9 or 11A, it is not a valid defence for that accused person to rely on a subjective belief that the complainant was consenting to the conduct in question, unless the accused took objectively reasonable steps to ascertain that the complainant consented to [the] sexual conduct in question.”’

As a judicial officer, I believe it is a crucial jurisprudential development in that it clarifies the legal meaning of ‘honest’ for analysis of mens rea. It is the wording ‘unless the accused took objectively reasonable steps to ascertain that the complainant consented to the sexual conduct in question’ in para 3 of his order that forms the basis of this article. The element of intention (mens rea) of sexual assault engages a consideration of consent. ‘The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched’ (R v Ewanchuk). ‘[An] accused who pursue[s] sexual activity without ascertaining that affirmative consent is being communicated violate[s] a legal duty, the duty to ascertain consent. Either there is consent or not. There is no third option. Similarly, if the evidence shows that the accused was aware that the other party was not or might not be communicating valid affirmative consent, the accused is precluded from relying on a defence of belief in consent as a matter of law pursuant to simple logic … . A mistaken belief in consent based on inattention, recklessness, or wilful blindness is never an “honest” belief and in each case is inculpatory, not exculpatory’ (L Vandervort ‘The prejudicial effects of “reasonable steps” in analysis of mens rea and sexual consent: two solutions’ (2018) 55 Alberta Law Review 933). ‘In these circumstances, “reasonable steps” analysis is a classic “red herring;” it adds nothing, changes nothing, [and] is superfluous’ (Vandervort (op cit)).

The concept of reasonable steps is to some extent foreign in our jurisprudence and, therefore, it requires introspection. Where an accused was aware the complainant was not communicating valid voluntary agreement to engage in the sexual activity in question with him or her or was not certain that voluntary agreement or consent was being communicated, the accused’s state of mind is one of being aware that consent is or may be absent. Mens rea about consent is, therefore, proven. The process a court should engage in when assessing if the defence of mistaken belief in communicated consent is available is as follows:

An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to the defence. This necessarily requires that the court consider whether there is any evidence on which a court acting judicially, could find –

• that the accused took reasonable steps to ascertain consent; and
• that the accused honestly believed the complainant communicated consent.

‘If there is an air of reality to the defence of honest but mistaken belief in communicated consent, including the reasonable steps requirement, then the defence should be left with the [court]. The onus would then shift to the [state] to negative the defence, which could be achieved by proving beyond a reasonable doubt that the accused failed to take reasonable steps’ (R v Barton 2019 SCC 33 (CanLII)).

‘Professor Elizabeth Sheehy puts it this way: “reasonable steps” requirement was intended to criminalise sexual assaults committed by men who claim mistake without any effort to ascertain the woman’s consent or whose belief in consent relies on self-serving misogynist beliefs. The common thread running through each of these descriptions is this: the reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say “no”’ (R v Barton). ‘The principal considerations that are relevant to this defence are (1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent’ (R v Barton).

In practical terms the reasonable steps requirement provides that, ‘to rely on an honest mistake, an accused must take reasonable steps, in the circumstances known to him at the time, to ascertain if consent exists’ (RC Way ‘Bill C-49 and the politics of constitutionalised fault’ (1993) 42 UNBLJ 325). In other words, the insertion of the term reasonable steps relocates the culpability in sexual assault. ‘It explicitly shifts the focus, in a limited number of cases, away from the self-conscious wrongdoing of the accused. The new focus is on the culpability inherent in the accused’s failure to take reasonable steps to determine if the act he is about to engage in is … mutual and consensual. [It] … creates a form of objective liability in that the accused is held up to a standard of reasonable conduct which is assessed based on the circumstances known to the accused at the time of the [sexual] assault.  [It] … does not require that the belief in consent itself be reasonable, but rather that the accused make a reasonable effort to ascertain if consent … exists.’

In general, it is of the utmost importance jurists must take heed of the following facts:

• The accused person is not required to take all reasonable steps but is required to take objectively reasonable steps. He must sincerely believe that the complainant consented. ‘The accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred’ (R v Barton).
• ‘The reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time’ (R v Barton). The more reasonable an accused’s perception of the complainant’s response to the steps he or she took, the fewer steps are reasonably required of him or her.
• The reasonable steps inquiry is highly fact-specific. ‘The more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent’ (R v Barton). The same applies where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. ‘The reasonable steps inquiry is highly contextual, and what is required will vary from case to case’ (R v Barton). The reasonable steps requirement impacts s 227 of the Criminal Procedure Act 51 of 1977. As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. ‘It is a species of [prospecting] evidence which may throw light on the complainant’s state of mind. It cannot, of course, prove that she consented on the occasion in question. Relevance and sufficiency are different things. … What one has been engaged on in the past may influence what choice one makes on a future occasion. Accordingly, a prior relationship between a complainant and an accused may sometimes be relevant to what decision was made on a particular occasion’ (R v A [2001] 3 All ER 1). It is, however, important to emphasise that ‘the accused cannot rest his defence on the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed that she consented’ (R v Barton). Common sense dictates that in most intimate relationships, sexual consent is an afterthought: the parties willingly give of themselves to their partner, and the question of consent simply fails to arise. Some relationships are beyond consent. I hasten to state it is ‘not … a blanket consent, or an advance consent – which is impossible … – but a form of consent that is deep enough to do away with the need for contemporaneous consent to certain acts that have developed into norms … of the relationship’ (Bryan Birtles ‘On sexual consent in Canada: The balance between protecting and respecting sexual autonomy’ 2020 CanLIIDocs 1902).
• Perhaps an analogy would explain it better. ‘Smith and Jones are neighbours, and every Sunday, Smith borrows Jones’s lawnmower. It may have started out with Smith asking to borrow the item but, over time, the conventions of the relationship become such that in the absence of any specific dissent – maybe Jones needs to mow his mother’s lawn that weekend – it is reasonable for Smith to assume he can continue to borrow his neighbour’s mower, and he ceases to need specific consent at the time of borrowing: he can simply take the mower without asking, because he knows that if he did ask, Jones would consent’ (Birtles (op cit)). The analogy creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and the circumstances known to him at the time. This proportionate relationship opens the door to a difference in consent standards between strangers and those in ongoing, loving relationships, because it implies that reasonable steps could be different if circumstances are different. It is, therefore, fact-specific to determine the reasonable steps requirement.
• Courts should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. ‘“Test[ing] the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step’ (R v Barton).
• The task of the court is to apply a quasi-objective test to the situation. First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable person was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to take further steps, and the defence will apply.

Care must be taken not to confuse the reasonable steps requirement with a common-sense analysis. In the common law tradition, reasonableness is typically left undefined. Courts assume the ‘reasonableness’ or ‘unreasonableness’ of a person’s action will be self-evident once it knows the factual circumstances and social context in which the action was taken. Actions that appear to reflect community norms and common-sense reasoning, are more likely to be described as ‘reasonable’ than those that do not. The term reasonableness will often be used to show that reasonable steps have been taken. The use of common sense to determine what is reasonable, encourages speculation about the facts and what the accused knew. Commonly held assumptions and attitudes towards the parties and the factual circumstances that are crucial in common sense reasoning inevitably shape decisions about whether an accused took ‘reasonable steps’ to ascertain consent.

Lastly, the reasonable steps requirement will with time erase ‘the assumptions traditionally – and inappropriately – associated with passivity and silence’ (R v Barton).

Desmond Francke BIuris (UWC) is a magistrate in Wynberg.

This article was first published in De Rebus in 2025 (March) DR 26.